Abortion foes threaten suit that may cut state's federal funds

Threatened legal action puts federal funds at risk

Antiabortion groups are calling for legal action - and a possible cutoff of nearly $90 billion in federal funding to California - after Gov. Jerry Brown's administration told insurance companies doing business in the state Friday that their policies had to cover all abortions.

Brown's Department of Managed Health Care had previously approved insurance plans issued to Santa Clara and Loyola Marymount universities, and possibly other employers, allowing them to deny coverage for "elective" abortions, those not needed to protect a woman's life or health.

But the department reversed course Friday, at the urging of abortion-rights advocates and faculty members at the two schools, and sent letters to seven insurers saying abortion was a "basic health care service" under state law that must be included in all health plans.

Both universities issued statements saying they would follow the law, but they did not disavow future court action.

"We will confer with (insurers) to ensure that our health plans continue to be fully compliant with state and federal law," said officials at Santa Clara, where restrictions were scheduled to take effect next year. A spokesman for Loyola Marymount, where the plan went into effect in January, made a similar statement.

But Bill Donohue, president of the Catholic League for Religious and Civil Rights, called the state's action "morally obscene" and said the universities should file religious-freedom suits. And other organizations that oppose abortion said California is violating an antiabortion provision of federal law and is at risk of losing much of its federal funding.

"Federal law prevents California from mandating that a health insurance plan include abortion coverage," the Life Legal Defense Foundation, Alliance Defending Freedom and Cardinal Newman Society said in a letter to the state Department of Managed Health Care.

They cited the Weldon amendment, enacted by Congress each year for the last decade. It requires a state to forfeit all federal funds for health, education and labor if it "subjects any ... health care entity to discrimination" because the entity "does not provide, pay for, provide coverage of, or refer for abortions."

California is discriminating against certain health insurance plans - defined as "health care entities" under the Weldon amendment - by withdrawing the state's approval because the plans fail to cover all abortions, the antiabortion groups argued.

Unless the state withdraws its decision, the groups said, they will notify the Obama administration's Department of Health and Human Services, which has sole authority to enforce the Weldon amendment.

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"If HHS follows the law, they will cut off funding," said the Life Legal Defense Foundation's legal director, Catherine Short.

California is receiving $89.5 billion from the federal government this year for health, education and labor, the state Finance Department said.

The Brown administration declined to comment on the Weldon amendment.

The federal government has never tried to enforce the amendment against a state. California challenged the amendment in court in 2005, saying it could be used to punish the state for mandating emergency abortions at Catholic hospitals, but a federal judge dismissed the suit as premature because the state had not been threatened with a funding cutoff.

One of California's leading abortion-rights lawyers said the state is in little danger of losing funds because the Weldon amendment doesn't apply to its actions.

The amendment prohibits discrimination only against those who won't "provide coverage" for abortions - in this case, employers, like the two universities, said Margaret Crosby, an American Civil Liberties Union attorney in San Francisco.

She said the state isn't regulating the schools, which remain free to sidestep the state law by insuring themselves, and is just "neutrally enforcing its fundamental policies protecting reproductive health care."

Crosby also cited the U.S. Supreme Court's 2012 ruling that struck down a provision of the federal health care law requiring states to expand Medicaid coverage for low-income residents or forfeit federal Medicaid funds. The court said the law went too far in coercing the states, Crosby said.

The Weldon amendment, she said, would withdraw much more funding and is "clearly more coercive."